HC Deb 08 June 1847 vol 93 cc246-56
SIR F. THESIGER

trusted that in presenting the case of Mr. Drew to the House, it would he unnecessary for him to do more than state shortly and simply the circumstances, in order to induce them to come to the conclusion that Mr. Drew had great cause of complaint. Had this been merely the complaint of an individual who had been disappointed in his reasonable expectations of obtaining some office or employment, he should not have felt justified in introducing the subject at all; but when the complaint was taken in connexion with the strongest and most direct pledges given while a particular measure was in progress through that House, and which had the effect of disarming opposition, he did feel that the subject was one which assumed a very different complexion—that it was not the case of an individual, but one in which the whole House had the deepest interest. Mr. Drew was for upwards of thirty years a solicitor of high standing and reputation, carrying on an extensive business in Southwark. For upwards of twenty years he held the office of clerk to the commissioners of the court of requests, at a salary of 500l. a year, which office he held for life. The commissioners of the court of requests being generally unprofessional persons, Mr. Drew was their legal adviser on all points; and in any question which involved any law, he was virtually judge of the court. It was necessary to say that the experience of Mr. Drew made him familiarly acquainted with the machinery and operation of a court of this description. In 1844 an Act was passed for the amendment of the laws of insolvency and bankruptcy; and in that Act a clause was introduced empowering commissioners of courts of requests to appoint assessors with the sanction of the Secretary of State, there being a provision that the appointment should not entitle the party appointed to any compensation, supposing a general Act was passed for the recovery of small debts. The commissioners of the court of requests then presented a memorial to the Privy Council, praying to have their jurisdiction increased from sums of 51. to 20l.; and in consequence of that memorial having been presented, they delayed to make any appointment of an assessor. Another Act was passed in 1845 which gave the courts presided over by assessors the power of committing fraudulent debtors; and, in 1846, complaint was made by the tradesmen within the jurisdiction of the court that they were unable to receive the advantage of that Act, from no assessor having been appointed. The commissioners, therefore, felt it to be their duty to attend to suggestions made to them on this point; and having had twenty years' experience of Mr. Drew in the capacity of clerk, they unanimously agreed to give the office of assessor to that gentleman. Now, the House would bear in mind that Mr. Drew was in this situation, that he held the office of clerk for life, with salary of 500l. a year; and that there was a clause which provided that the assessors should have no compensation if any general Act passed for the recovery of small debts. But it happened at that time that there was a Bill introduced into the House for this very purpose, and in that Bill there was a clause that the assessors of existing courts should be entitled to be the judges of the new courts to be appointed under the Act. Mr. Drew, therefore, feeling that he would not be giving up his certain situation for life for any uncertainty, and being perfectly satisfied that this clause would protect him from any injurious contingency, agreed to accept the office. The Government had changed during the time that elapsed between the appointment of Mr. Drew and the sanction of that appointment; but the right hon. Gentleman the present Secretary of State for the Home Department, on application being made to him, at once sanctioned Mr. Drew's appointment. The Bill, however, for the recovery of small debts, in its progress through the House, met with some alterations, and the clause which he had just mentioned was removed. This created considerable alarm in the minds of the commissioners of the court of requests and the friends of Mr. Drew; and a deputation was appointed to obtain information on the subject, and the assurance was given that Mr. Drew would be confirmed in his appointment as judge of the court to which he had been elected under the circumstances he had already mentioned. Now, that was perfectly correct; and he was now speaking in the presence of those who heard the distinct assurances that were given by the present Secretary for the Home Department, and by the Attorney General, that persons who were filling existing offices as judges of the abolished courts should have the preference in the appointments that were to be made in the new courts established under the Act. The hon. and learned Gentleman read extracts from the speeches of the Home Secretary and the Attorney General in August, 1846, in support of this statement. He would ask the House whether the friends of Mr. Drew, supposing there was no objection to his qualifications, were not entitled to expect that he would have been most unquestionably appointed to an office in the new court? The moment after the Act passed, therefore, Mr. Drew addressed a petition to the Lord Chancellor, setting forth his claims and the circumstances of his case, and praying that his Lordship would appoint him to one of the new courts. No answer was given to his memorial, and he knew nothing of the disappointment of his hopes until he received from Mr. Clive an intimation that he (Mr, Clive) was appointed. Mr. Clive had been for some years a police magistrate, the duties of which office he had fulfilled with great ability, and to the satisfaction of every one; but Mr. Clive had had no experience whatever in a court of this description, and he could not be put in comparison with Mr. Drew, who had had twenty years 'experience. Mr. Clive, therefore, was taken from an office in which he had been employed usefully to the public, and put into' an office for which he was not qualified, and the public were deprived of the services of a person well qualified for it. The commissioners of the court of requests, feeling that great injustice had been done, thought it right to appoint a deputation to wait upon the Lord Chancellor, and state Mr. Drewe's case. The Lord Chancellor, upon hearing that Mr. Drew had given up his office, said, "Why did he run the risk?" Did any one in the House re-echo that observation? Could Mr. Drew have supposed he ran any risk in trusting to the good faith of the Government? When pressed, the Lord Chancellor's observation was, "It is a very hard case;" and he asked whether Mr. Drew would like to fall back upon his original appointment of one of the joint clerks of the court? This suggestion of the Lord Chancellor was repeated by Mr. Clive in a letter to Mr. Drew, of the 14th of March, which led to a correspondence between them, and he would read to the House a letter from Mr. Drew, declining such an appointment. [The hon. and learned Gentleman read the letter, which stated that his friends concurred with him in thinking that he should not accept the offer, since it would be a retrogression in rank.] He (Sir F. Thesiger) remembered that, when his right hon. Friend, the head of the late Government, for the purpose of securing to the public the eminent judicial talents of the present Lord Chancellor, proposed that he should accept the office of one of the Vice-Chancellors, then recently appointed; the noble Lord now at the head of the Government laughed the proposition to scorn, as if he thought it absurd to suppose that the Lord Chancellor should condescend to accept an inferior judicial situation; and yet almost the very same sort of proposition emanated from that source. Nay, it was not that Mr. Drew should accept a lower judicial appointment, but that he should drop from the office of judge to become a clerk, to register the decrees of the judge. He would ask any Gentleman if Mr. Drew would not, in some degree, have compromised his character by consenting to accept the lower situation? It might be said, that there was a well-founded objection on the part of the Lord Chancellor to the appointment of Mr. Drew, as he was a solicitor; and the Lord Chancellor considered that only barristers ought to be appointed to the new judgeships. That observation would come rather too late. The claims of the judges of the old courts, whether barristers or attorneys, were before the House when the Bill passed, and the Act contained a clause which gave to the judges of the old local courts a prior right to appointments in the new courts. But, if he did not mistake, the Lord Chancellor had, in several instances, appointed attorneys to be judges of the new courts. If the Chancellor of the Exchequer had been present, he would have asked that right hon. Baronet whether Mr. Stanley, a solicitor, had not been appointed to the Halifax county court; and he would appeal to the hon. Member for Brighton whether Mr. Turner, a solicitor, had not been appointed judge of the Brighton court. After the pledge of the Government, given to Mr. Drew and all other persons similarly situated, no available objection could be made to his appointment to a judgeship, but that he was not qualified. Would it be said that the appointment of Mr. Drew to be assessor had been made so shortly before the Small Debts Act had passed, that he had no right to be appointed one of the judges of the new courts? He apprehended that Mr. Drew was as perfectly entitled as other judges under the pledge. Mr. Drew had, for the purpose of taking upon himself the office of assessor, given up the office he held from the commissioners, as well as his professional practice; and he wished to elicit some explanation of the reasons, which amounted to a justification, why he was not appointed to the judgeship. If no explanation was given, and no satisfactory reason was stated, why Mr. Drew was passed over, he confessed it would appear to him (Sir F. Thesiger) one of the most cruel cases, and one of the grossest acts of injustice, which ever came before the House. Under these circumstances, he moved— That a Copy of a Letter from the Secretary of State for the Home Department, approving of the appointment of Mr. Drew to be the Assessor of the Southwark and Brixton Court of Requests, under the Act 8 and 9 Victoria, cap. 127, he laid upon the Table of the House.

SIR G. GREY

had not the slightest objection to the document moved for being laid upon the Table. The hon. and learned Gentleman had stated circumstances from which the hon. and learned Gentleman wished the House to infer that great injustice had been done to Mr. Drew. Upon referring to Mr. Drew's petition he was surprised at the loose way in which it was worded. The petitioner stated that— In August, 1846, a Bill was pending in Parliament for the bettor recovery of small debts, in which provision was made that persons holding the appointment of assessor should be the first judges of the new courts; but such Bill was afterwards altered, and the clause confirming the assessors as the first judges of the new courts was omitted. Then, in a subsequent part, he stated— That relying implicitly upon the arrangement proposed in the Small Debts' Bill, when first brought in, he resigned his office of clerk," &c. The hon. and learned Gentleman's statement was in accordance with this petition, and proceeded upon the supposition that the Bill conferred an absolute right in the existing holders of the office of assessor to be appointed judges; and that Mr. Drew, being an existing holder of the office of assessor in the court of requests, was entitled to the appointment as judge; that a pledge, on the part of the Government was given, and that pledge had been forfeited. He would prove to the House that Mr. Drew had not a shadow of right under the Bill; that he was not the holder of an office respecting which the Bill conferred any such absolute right. By a clause in the Bill, the late Government provided against such claims as that set up by Mr. Drew. By the eighth clause, the qualification of assessor for the appointment of judge in the new courts was confined to those who held the office on the 1st day of June, expressly excluding those who did not hold the office on that day. By a subsequent clause, the Act gave power to the Government to fill up vacancies by barristers-at-law, commissioners of local courts, or persons holding the office of assessor on the 1st day of June. Mr. Drew was not a barrister, nor a commissioner, nor did he hold the office of assessor on the 1st day of June. [Sir F. THESIGER: The Bill was altered in Committee.] Mr. Drew acted on the faith of the Bill as it stood. The Bill was introduced by the Duke of Buccleuch on the 15th of June, 1846, when the right hon. Baronet (Sir R. Peel) was in office. On the 25th of Juno a circular issued from the Southwark Court of Requests for a general meeting on the 2nd of July, 1846, to appoint a fit person to fill the office of assessor; and this circular was signed "Meymott and Drew, clerks;" so that Mr. Drew was one of the clerks of the court at that time; and at the meeting so convened Mr. Drew was appointed assessor. Upon the 28th of July a memorial was addressed to him as Secretary of State, to confirm the appointment of assessor; and the hon. and learned Gentleman seemed to think that, by this confirmation, he had given Mr. Drew some right to a future appointment. But that was a mere Ministerial act; and Mr. Drew being, as he admitted, a gentleman of unexceptionable character, he confirmed the appointment. Mr. Drew had not been excluded from the judgeship because he was an attorney, or because he was disqualified for the appointment of a judge in the new courts; but Mr. Drew, either under the Bill as it was originally introduced, or by the Act as it subsequently passed, had no shadow of a claim to a prior right of appointment. But it had been said, that there had been a pledge given to the House that the holders of existing offices should be the judges in the new courts. He positively denied any such pledge. The Lord Chancellor had said in the other House, and he had said in this, that the Government thought it inexpedient that there should be any absolute right; that there should be an unfettered discretion in the Lord Chancellor to select proper persons to fill the judgeships; at the same time, where claims and qualifications were equal, the existing judges would be considered to have a prior claim; and, out of the sixty judges appointed, thirty-two had held the situation in the former courts. But Mr. Drew was not in such a position; he was not the holder of the office of assessor till July, and therefore he had not the shadow of a claim to a future appointment. It had been anticipated that he would have been objected to because he was an attorney; but that was not so. And when the hon. and learned Gentleman spoke of the experience of Mr. Drew qualifying him for the appointment, it was to be recollected that, when the alteration took place, he was assessor in a court (the court of requests) the jurisdiction of which was limited to 51., whereas the new courts took cognizance of suits under 201., the duties of which were consequently more onerous. Under these circumstances, he must say, that so far from the hon. and learned Gentleman having shown that any injustice had been done to Mr. Drew, he thought that he had been treated very kindly by Mr. Clive, in the offer which that gentleman made him to restore him to the office he had so long filled. Mr. Drew seemed to have acted under a very mistaken apprehension of the intention of the framers of the Bill; and certainly the question put by the Lord Chancellor with respect to the course that gentleman took was not a very inappropriate one—"Why did he run that risk?" The right hon. Gentleman concluded by saying, he had no objection to produce the letter moved for by the hon. and learned Gentleman.

MR.GOULBURN

considered the case of Mr. Drew to be one of peculiar hardship. The right hon. Gentleman had stated that it was clear Mr. Drew had no legitimate claim upon the Lord Chancellor to be appointed to be the judge of this now court. If that was true, let him ask, when Mr. Drew presented his memorial expressing his anxiety to know upon what grounds the appointment was not conferred upon him, why was no answer returned? Would it not have been the most satisfactory way of treating Mr. Drew, to have told him that by law he was not entitled to the appointment? By not telling him so, he was left under an implied imputation of not having been appointed on account of some inefficiency, or of some disqualifying conduct.

SIR F. THESIGER

observed, that the right hon. Gentleman (Sir G. Grey) with very great ingenuity had contrived to avoid the most important part of the case, namely, that a pledge had been distinctly given, and repeated that the existing judges should be entitled to preference in the now appointments. He had correctly stated the expressions said to have been used on a former occasion by the right hon. Baronet; and he (Sir F. Thesiger) appealed to the House whether the language he had quoted did not amount to a pledge, that if there were no objections to any existing judge, he was the person who would be entitled to priority? The right hon. Baronet admitted the pledge, but had endeavoured to show that Mr. Drew had placed his case upon a wrong ground, by saying that the Bill originally introduced by the late Government contained a clause which protected his right.

The ATTORNEY GENERAL

said, that his hon. and learned Friend had thought proper to repeat that a pledge was given by his right hon. Friend (Sir G. Grey), although his right hon. Friend had denied having given any pledge. He (the Attorney General) would state what did occur, an account of which might be seen in the Parliamentary reports; and if his hon. and learned Friend had been present on that occasion, he would not now have persisted in his statement. His hon. and learned Friend had taken only an extract of what was said by the right hon. Baronet; if he had taken the whole speech, his hon. and learned Friend would have been aware that no distinct and positive pledge was given that these parties should be appointed judges in the new courts, but that their claims should be considered, and that they should have the preference. This statement was followed by an observation from himself (the Attorney General), that it was utterly impossible all the existing judges could have claims, for there were about eighty persons then holding office, and there would be only about sixty new judges appointed. It never could have been sup-posed by anybody that it was intended to give these gentlemen what was considered a vested right, such as to authorize his hon. and learned Friend to persist in his statement. [Sir F. THESIGER never stated that the Bill gave them a vested right, but a pledge was given that they should have the preference to others.] True; but his hon. and learned Friend considered that Mr. Drew had sustained a great grievance, and that he and others in a similar situation had, by reason of what had passed last Session, been lulled into a state of fancied security. Mr. Drew was appointed assessor to the Southwark Court of Requests in July, 1846; and he stated in his petition that at that time, he had reason to expect that he should have been continued in his office, because (as he alleged) in the Bill which was then pending respecting the establishing of new courts for the recovery of small debts, there was a clause which preserved to him that right. But was that so? It was not; for by the Bill to which Mr. Drew referred, it was expressly provided that no person should have the right of being appointed a judge of these new courts who had not been a judge of the then existing courts of limited jurisdiction on the 1st of June, 1846. Now, Mr. Drew was not appointed assessor until July, 1846. And for what purpose was this clause inserted? Why, in order that the introduction of the Bill should not he the signal for old and incompetent persons to retire from the office of judge, that younger persons might get the appointments, and thus obtain a vested right to the now judgeships. With respect to Mr. Drew not having received any answer from the Lord Chancellor, he believed that the uniform practice was, when applications were made of that nature to the Lord Chancellor, for that learned person not to return any answer. He certainly knew that there were persons who were quite as high in station as Mr. Drew —men of rank, of high standing, and of undoubted merit in their profession, and who had made applications to the Lord Chancellor, and who did not consider it derogatory to their dignity not to have received an answer from that noble and learned person. No doubt the case of Mr. Drew was a hard one; but the Lord Chancellor was not to be blamed for it. Mr. Drew gave up his appointment as clerk to become assessor, for the sake of the chance of being appointed judge under the new law. That chance had failed him; but, was the Lord Chancellor answerable for that? It was a hard case, but it must also be considered a strange ease. His former office of clerk still remained open, and to which Mr. Drew might even now be appointed; but he considered it beneath his dignity to become a clerk in the very court in which he had sat as judge, although it was a more lucrative appointment than that of assessor.

MR. NEWDEGATE

was not surprised that Mr. Drew had been disappointed, for he who had been listening to what had occurred on the subject, had expected that a different course would have been taken. The right hon. Gentleman the Attorney General said, that his answer on a former occasion was so plain, that it was impossible he could he mistaken. He was in the House at the time, and had heard that answer. [The hon. Gentleman read from Hansard the report of the Attorney General's observations on the occasion referred to,* from which it appeared that the right hon. Gentleman gave the House to understand that the sixty new judgeships would be filled out of the eighty existing assessors.] The impression produced on his mind was that the new judges would be selected from the eighty existing judges; yet Mr. Clive had been appointed who was not one of the assessors. He put a distinct question to the right hon. Baronet the Secretary of State for the Homo Department, who gave him distinctly to understand that the former judges would have a preference in the new appointments. He therefore sat down, satisfied that his Friend Mr. Guest, of Birmingham, whose interest he wished to promote, would be appointed; but Mr. Guest had been disappointed, and accepted the alternative of a clerkship. Upon the whole, he was not at all surprised that Mr. Guest should consider himself disappointed, * See Hansard, Vol. lxxxviii. Third Series, p. 916, and that Mr. Drew should think himself an ill-used man.

Motion agreed to.